You know environmental lawsuits have
spun out of control when barge activity on the Missouri River
must come to a halt to preserve habitat for the nesting piping
plover.

A federal district court decision ordering the Army Corps of
Engineers to reduce water levels from the Missouri River dams
so piping plovers, least terns and pallid sturgeons can breed
on sandbars1 threatens to decimate the river's shipping industry,
endanger water quality and reduce water supplies and power for
communities in downstream states.2

The ruling follows a lawsuit filed by
the special interest group American Rivers and nine allies that
sued the Army Corps under the Endangered Species Act (ESA) for
failing to reduce water levels to protect the habitat of endangered
species.3

Judge Gladys Kessler, who wrote last
month's original court decision, concedes significant human sacrifice:
"Navigation will be interrupted for the remainder of the
summer and barge companies will lose revenues. Water quality
may be affected and there may well be higher water purification
costs. Hydroelectric resources will be affected, and consumers
may suffer higher costs."4

But these hardships, in Judge Kessler's
view, can't compete with the species at issue because, in her
words, "there is no dollar value that can be placed on the
extinction of an animal species - the loss is to our planet,
our children and future generations."5 That is to say: the needs of a sturgeon are
naturally placed so far above human needs that cost assessments
should not even be considered.

Sadly, nonsensical litigation such as
this is not rare. Rather, it is an epidemic that not only compromises
human needs but, ironically, compromises the protection of endangered
species. ESA lawsuits are so routine that U.S. Fish and Wildlife
Service (FWS) staff spend more time and dollars handling litigation
than saving endangered species.6
The FWS reports that as much as two-thirds of its budget for
placing endangered species on the protection list is consumed
fulfilling court orders and settlement agreements. Its $6 million
budget for designating critical habitat was depleted by the end
of July.7 FWS officials are asking Congress to authorize
funds from other endangered species protection programs so they
can complete pending court orders.

The environmental litigation craze dates to the Clinton Administration.
In 2000, Clinton's FWS Director Jamie Rappaport Clark was forced
to place a moratorium on 25 endangered species under consideration
for protection so she could handle a flood of court orders. Calling
it a "biological disaster," she protested that litigation
"has turned our priorities upside-down. Species that are
in need of protection are having to be ignored."8

Judges' decisions, constrained by the
rigid language of the ESA, also muddle priorities and discourage
scientific determinations. Nowhere is this more true than lawsuits
over "critical habitat designations" - a contentious
mandate under ESA that frequently requires the protection of
an endangered species' habitat over protection of the endangered
species. In fact, one court ruled that FWS must designate critical
habitat for endangered species even if it is considered a lower
priority than other protection activities.9

Small wonder that the National Research
Council has concluded, "designation of critical habitat
is often controversial and arduous, delaying or preventing the
protection it was intended to afford."10 Yet the majority of environmental civil cases
filed are over designations, and in most cases, over missed designation
deadlines due to resource constraints.11

Environmental groups fuel the judicial
absurdity and artfully use the courts to drive their political
agenda. They also know it pays to take an agency to court. As
required by law, attorney fees are funded by taxpayer dollars
every time a plaintiff wins a case. That can mean big bucks.
Data from the U.S. Department of Justice, as reported by The
Sacramento Bee, shows that environmental lawyers typically charge
$150 to $350 an hour. In the 1990s, the average award was $70,000,
though tax-financed awards of $100,000-plus are not uncommon.12

Congress must put an end to this litigation
rage. Without needed reforms, frivolous litigation will continue
to jumble priorities, sacrificing methods that truly protect
species and wildlife.

# # #

Dana Joel Gattuso is a senior
fellow of The National Center for Public Policy Research, a Washington,
D.C. think tank. Comments may be sent to [email protected].